Monday, November 08, 2004

The Reynolds complaint on the Smoking Gun only has 7 pages; the remaining pages are not available and the we have no documentation before us showing which lawfirm signed the complaint.

Also, we have nothing from Reynold's counterparty to compare as was done in the Mackris-O'Reilly analysis where both complaints were available for full review. It remains unclear whether Reynolds' girlfriend plans to actually file a counterclaim.

The major problem with comparing the O'Reilly and Reynolds cases are the inconsistencies between the court complaint and the subsequent public statements. O'Reilly essentially laid all his cards down in the complaint and Mackris provided another view of the issues; however, while Reynolds' complaint doe not capture the pre-litigation discussions over settlement.

Partial Analysis

The unknown relationship. What distinguishes the two cases is that there appears to be no contractual relationship between Reynolds and the girlfriend; however, in the O'Reilly case Mackris was a paid employee of Fox.

However, going forward, it remains to be seen how the court views the Reynolds' relationship and exchange of money.Ref A potential risk to Reynolds is if the court finds that the exchange of money and gifts was done in exchange for consideration amounting to an informal contract. However, Reynolds' lawyer disputes this possibility stating that Florida courts do not recognize such a relationship as a divorce.Ref

Given the sums are in excess of $500 and appears to be nothing in writing that would memorialize the relationship, we have yet to understand what basis Reynolds' opposing party will proceed.

What ongoing relationship might have supported the original claim would tend to sour before the court once the court is convinced that the enforcement of that contract was only through unlawful means.

Courts do not recognize contracts that are designed to achieve unlawful purposes; in this case the unlawful purpose would be to use unlawful means to enforce a "speculative contract".

Evidence Unlike the Mackris case where there were reportedly tapes, we have no information on what evidence defendant would provide to substantiate her claim. That Reynolds has offered a settlement is not evidence nor an admission of wrongdoing as settlement offers are not probative nor admissible for jury consideration. It remains to be seen what form defendant plans to substantiate her claims.

What distinguishes the two cases is that Mackris appeared to have witnesses, while defendant has not stated clearly the nature of her evidence, whether there were any witnesses to the abuse. We are limited in this respect in that defendants' written complaint is not yet available for comparison with Mackris' complaint.

Falsity What distinguishes Reynolds' suit from O'Reilly is that Reynolds claims that the defendant is allegedly falsely accusing him of extortion, while O'Reilly failed to state that the demand was based on a false claim.

Alleged false statement. Reynolds alleges at 22 that the defendants' attorney made a communication to Reynolds' attorney that there was a plan to knowingly make a false statement. At no time did Mackris' attorney make such a claim on behalf of Mackris.

Recognized claims. Also, it was O'Reilly who sued first despite Mackris hoping to settle the dispute through mediation; Reynolds faced no similar potential opposite lawsuit upon which relief could be granted.

Courts do not recognize as a viable claim to "recover speculative damages" that Reynolds' defendant would likely claim "if the payments were not made." In short, even if there is a contractual relationship, that agreement [if enforceable] would tend to get spoiled if it could only be enforced through extortion.

Foundation. O'Reilly's real contention was not that the Mackris claim was false, but that the claim was for an excessive amount of money and that the settlement discussions were causing O'Reilly distress. The same issue arises in Reynolds when he reportedly agreed to settle the issue for $1M. Ref

However, in his complaint, Reynolds argues the opposite -- that the request for money was based on a falsehood and gives no weight in his complaint to the amount of money requested, other than at 33 mentioning "millions" of dollars. At 38 Reynolds makes a claim related to civil remedies for extortion, while O'Reilly made no similar claim.

Rather, O'Reilly at 59 stated that the request for a settlement was done with malice; yet the courts encourage private settlement of disputes, thereby striking the foundation of O'Reilly's claim.

Extortion Further, the claim of extortion is not a civil matter, but a criminal one. When O'Reilly claimed "extortion" he was not speaking of a crime, but that someone would ask him to "settle" a case over allegations of sexual misconduct for $60M.

O'Reilly appears to have misspoken in using "extortion" in that he would be more correct to say, "alot" or "a high amount." It is rumored the final settlement was $6M.

Injunction. For the injunction to be granted, Reynolds will have to prove that the conduct is occurring, has been occurring, and that an injunction will stop likely future activity.

Notice the repetitive words used in the complaint -- this has to be alleged to show a course of conduct that is in appropriate in order to have the injunction granted.

Bluntly, an act must be both wrongful and have a high probability of occurring again in the future before a court will bar someone from doing it with an injunction.

Defamation. With Reynolds, notice that there is no claim for defamation, indicating that the allegedly false statement has not been made, only that it will allegedly occur in the future unless payments are made.

In the Reynolds case, the allegation is specifically alleged to be false which Reynolds will have to prove is false. If there is another claim At the same time, the burden of proof as to the truth of the matter will be on the defendant.

Other thoughts [Added: 10 Nov 04]

Lack of claim alleging abuse.

Defendant's original claim against Reynolds is not visible. Unclear whether there exists evidence and witnesses to the alleged abuse.

Unaware of police records documenting the abuse.

We await Defendant's counter claim that points to admissible evidence of investigations into the allegations of abuse. Without evidence, we are not persuaded that the alleged abuses, if it occurred, was adequately investigated at the time it occurred; nor that there is a documented pattern of abuse.

For Reynolds favor: Offer of settlement at $1M rejected

In favor of Plaintiff is the offer of settlement that has been rejected. Although an offer of settlement is not probative, if the court finds that the settlement was fair, adequate and reasonable [regardless the facts], but the settlement was rejected, defendant stands to get nothing.

No claim of defamation

It remains to be seen what advice Reynolds' counsel has provided in re defamation. Defendants' attorney allegedly made it known that defendant planned to allegedly charge Reynolds with a false claim. If this communication occurred and was both false, knowingly false, and made known, we are unclaar why there is no cause of action against defendant for defamation.

Outlook

Suppose the alleged abuse occurred, but there is no evidence -- defendant may have failed in any attempt to get funds. The offer of $1M settlement may have been the last best chance. We await defendants' evidence, claims, and signed complaint. There are too many unknowns to even speculate where this might end. At this juncture, it appears Reynolds' first-filing did much to trump the defendants planned-disclosure.